IZZ EL DIN MOHAMMED SHARIF, Applicant-Plaintiff v. DlAB MOUSA, Respondent-Defendant
Civil Procedure-Res judicata-Prior or pending proceedings in Sheikh's Court
Where plaintiff had previously raised an action in a Sheikh's Court for
return of money invested in a co-operative society, and defendant had been
ordered to make an account with the society. which he subsequently did.
plaintiff was barred from raising an action at a later time in the civil courts
because either the previous action had been finally dismissed or it was still
pending; in either event it acted as a bar to a subsequent suit"
Civil Justice Ordinance. 1929. ss, 40, 41.
Revision
January 31, 1939. Creed c.J.: This case concerns a small co-
operative society which was formed, with headquarters in Cairo, for
the purpose of trading in Fareig El Mahas, Delgo Merkaz, Haifa. so
long ago as 1923, and which ceased work in 1927. The plaintiff held
* Court: Creed C.J. and Flaxman 1.
a share in the capital of the society and the defendant held some posi-
tion in the management of the society.
In the year 1933 the very claim which was made in this action be-
fore the Civil Court of Haifa wa made before the Sheikh's Court of
Delgo. The Sheikhs' Court decided on October 25, 1933, that the
defendant should proceed to Egypt within thirty days in order to make
an account with the society, and that in the event of the defendant not
proceeding to Egypt, the plaintiff should be at liberty to apply to the
court for judgement. It appears that during the hearing before the
Sheikhs' Court the defendant agreed that, if he failed to go to Egypt,
the judgement should be entered against him in accordance with tbe
plaintiff's claim.
Plaintiff went to Egypt, made an account with the society, and ap-
parently received a document releasing him from all liability to the
society.
The plaintiff now after the lapse of some years thinks fit to raise
an action on this matter in the H alfa Civil Court. Either the action
in the Sheikhs' Court has been finally dismissed, as it should have and
probably has been, or it is still pending. In either event the civil
courts have no jurisdiction.' On this ground alone the application
must be dismissed.
It may be well, however, that I should state that the reason for
the plaintiff bringing his action against the present defendant is not
obvious. The proper defendant is prima [acie the society, which ap-
pears to have no funds in its hands except £E.3.500 m/ms, the offer
of which sum the plaintiff has sternly refused to accept. In all the
circumstances of the case the plaintiff would, in my opinion, be well
advised to hesitate long before instituting legal proceedings against
the society. .
Flaxman J.: I concur.
Application dismissed